A trademark is a distinctive sign or indicator to identify that the products or services originate from a unique source of origin. A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.
Trademark: An Evolving Subject
Professor Jane Ginsburg is the co-author of a respected textbook on trademark, as well as several other books and articles on the subject.
“Because of domain names, web pages, and Internet advertising, the trademark field has grown a great deal in recent years and has brought trademarks to people’s attention in various ways,” says Professor Ginsburg. “That is why, in addition to the basic trademark course, we’ve added an advanced seminar in litigating trademark disputes.”
Professor Ginsburg’s interest in this area has taken a multidisciplinary turn through a workshop she led with colleagues at the University of Cambridge in England. That workshop looked at trademarks not only from a legal point of view, but also from the perspectives of marketing, anthropology, geography, economics, philosophy, and linguistics. “One of the more interesting topics to be covered is what happens when trademarks generated by advertising are incorporated into figures of speech, such as the ‘Pepsi Generation,’ ” she says.
As the Internet continues to influence trademark law, so too will it occupy more and more of the trademarks course, a tremendous change over the past 10 years.
Protecting the Brand
Among the issues Professor Clarisa Long has explored in detail is trademark dilution law. The Lanham Act—which governs trademarks—prohibits the use of a trademark by another company in a way that would cause confusion among consumers. For instance, a jeweler not associated with Tiffany & Co. cannot use Tiffany’s name. Trademark dilution law goes a step further, saying that the use of a famous trademarked name can be disallowed even if that use does not create confusion among consumers but merely “dilutes” the uniqueness of the brand name.
In her comprehensive empirical study, titled “Dilution,” which appeared in the Columbia Law Review, Professor Long found that the rate at which judges sided with trademark holders that brought these cases has fallen sharply. Indeed, courts have found ways to limit the effectiveness of the statute—a rare instance of the shrinkage of the scope of intellectual property rights in recent years. Still, Congress has amended the law to undo many of the limitations courts had put on the statute.